Jared Warden v Pharmacy Excellence Marysville

[2020] FWC 4713

[2020] FWC 4713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jared Warden
v
Pharmacy Excellence Marysville
(U2020/8076)

DEPUTY PRESIDENT MANSINI MELBOURNE, 7 SEPTEMBER 2020

Application filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Mr Jared Warden for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] I have determined that the application was filed 135 days outside the statutory timeframe and, taking into account the matters at s 394(3), am not satisfied that the circumstances are exceptional. Accordingly the time for filing is not extended and the application is dismissed. The reasons for that decision follow.

Procedural context

[3] The application was made on 11 June 2020. Mr Warden identified in the application that it was filed outside the statutory timeframe and the matter was referred for determination of the jurisdictional issue.

[4] As the Respondent did not consent to attempt conciliation in the first instance, the matter proceeded to hearing by video (Microsoft Teams) on 21 August 2020. The Applicant was granted access to the Commission’s workplace advisory service by way of support and, in addition to the application, filed further materials on which he sought to rely: two witness statements and a series of documents. 1 The Respondent filed a response on which it sought to rely.2 At the hearing, Mr Warden represented himself and gave evidence with the assistance of an Auslan interpreter. The Respondent was represented by the Pharmacy Guild of Australia of whom the Respondent is a member.

Application filed outside the statutory timeframe

[5] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3).
[6] There is no dispute that the Applicant’s employment has come to an end or that the application was filed outside the statutory timeframe. However the effective date of the employment coming to an end (and, it follows, the period of the delay) is not agreed.

[7] On the materials before the Commission, Mr Warden commenced permanent employment with the Respondent, on a part-time basis, on 19 July 2018. 3 On 4 November 2019, Mr Warden resigned. That resignation was to be effective 17 November 2019, but Mr Warden was then immediately reengaged as a casual employee.4 Mr Warden’s casual employment came to an end when he resigned again, effective 6 January 2020.

[8] Mr Warden’s claim is that his resignation was “forced” by the conduct of the Respondent. He contends that his employment came to an end effective 6 January 2020, 5 whereas the Respondent argues that it was 17 November 2019.

[9] I accept Mr Warden’s contention that his employment ended effective 6 January 2020. I do so in the absence of any evidence from the Respondent to support a contrary finding, and in the knowledge that the period of delay would only be greater if the Respondent were correct.

[10] The period of 21 days ended on 27 January 2020 which was a public holiday and accordingly the statutory timeframe for filing ended at midnight on 28 January 2020. 6 The application was therefore filed 135 days outside the 21 day period.

[11] The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

Are there exceptional circumstances?

[12] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 7 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.8

[13] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[14] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[15] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the delay

[16] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 9

[17] Mr Warden cited several matters as reasons for the delay in lodging the application. In summary, Mr Warden’s evidence of his reasons for the delay was as follows:

a) Mr Warden has a hearing impairment, autism and asberger’s syndrome and needed support to file the application. In respect of which,Mr Warden produced a referral from his general practitioner (Doctor Fraser) dated 25 June 2020, which included notes of consultations on 6 February and 28 May 2020. He also produced a letter from a psychologist dated 2 July 2020. The psychologist’s letter noted that Mr Warden had informed him of his intention to take action but found it too difficult to do so within the required 21 day period. The psychologist concluded with his opinion that, on account of his disabilities, Mr Warden “would not be in a position to fully comprehend how to negotiate a response to these allegations without substantial support and time to process the information.”. 10

b) Mr Warden was overwhelmed by stress. According to Mr Warden, this was elevated by:

•  anonymous threats and intimidation related to repayment of debts, which Mr Warden believed was instigated by the Respondent over the period or around late January to early February 2020;

•  the lease for Mr Warden’s accommodation coming to an end which required him to move to a temporary address, on and around 23 February 2020;

•  an incident with Mr Warden’s van, which occurred on or around 26 February 2020; and

•  an inability to focus and seek counselling and legal support because of restrictions in response to the global pandemic (COVID-19).

c) Mr Warden was confused. He conducted internet research and identified civil, criminal and employment claims but was lost amongst all the options.

[18] On 17 June 2020, Mr Warden said “It has been only the last few weeks I have been able to muster courage and hope in trying to do what I could have done in January” (sic.). In response to the Commission’s question about what ultimately caused Mr Warden to file this claim on 11 June 2020, Mr Warden said he understood that he had already missed the 21 day window but, after a while and a visit from his parents, decided to have another shot at getting this stuff sorted since he had gathered his wits about it. 11

[19] The Respondent asked the Commission to find that Mr Warden’s reasons for the delay do not weigh in favour of a finding of exceptional circumstances. In summary, it did not dispute Mr Warden’s diagnoses or that he was experiencing stress and confusion at the relevant times, but argued that:

a) Mr Warden had accepted that, by 28 January 2020, he had researched his options and was aware he could bring a claim for constructive dismissal. In any event, mere ignorance of the statutory time limit is not an exceptional circumstance. 12

b) Mr Warden’s stress, shock and confusion are not exceptional 13 and, even taking into account his medical condition, Mr Warden had not established that he was incapable of lodging his application within the 21 day timeframe.14

c) Mr Warden’s claims of difficulty in completing the paperwork to file this application were not credible given the volume of correspondence Mr Warden prepared and sent to the Respondent and the Victoria Police over the period 28 January to 21 February 2020. Further he could have sought support from the Commission.

d) The circumstances of the global pandemic (COVID-19) had no bearing on the Applicant’s circumstances and could not justify the delay because a state of emergency was not declared until 16 March 2020 which was some time after the 21 day timeframe had lapsed.

[20] The Respondent referred to a series of emails filed by Mr Warden, including emails from Mr Warden to the Respondent sent on 28, 29, 30, 31 January 2020 and 5 February 2020 and an email from Mr Warden to Victoria Police of 21 February 2020. In the emails of 29 and 30 January 2020, Mr Warden informed the Respondent of his intention to claim constructive dismissal in strong and direct terms. For example, in an email to the Respondent of 30 January 2020, Mr Warden stated:

“The following charges will be brought against your unethical acts and breach of safe workplace management:

[…]

4. A constructive dismissal claim for the many crimes you have committed causing me to fear my reputation by being involved with you. I thought I would have a stable job position with you for the next 3 years however as time progressed and things got worse and you continued abuse of my goodness has come to this point.

[…]

Other issues are being drawn up and will be sorted out. Enough is enough. I am not putting up with your manipulative threats and behaviour any more.

I had not idea how much of a bully you have been, and I was completely fooled.  Now that the wool is gone from the eyes and the many people you have hurt I have heard from, I will take this David and Goliath fight to the forefront.  The gloves are on, the peg on my nose and I am already wearing the raincoat.” 15

[21] I have given careful consideration to the materials before the Commission. I accept that Mr Warden was suffering from feelings of stress and confusion following his dismissal. I accept that his diagnoses means that support may be required in order to cause an application of this kind to be filed. Although it was not directly put, I am prepared to accept that the nature of his condition may have been responsible for the tone of his communications with the Respondent. The medical records before the Commission support these findings but do not establish more. The first record is of 6 February 2020, being a consultation with Mr Warden by his general practitioner in which work related stress is discussed (among other things); there is a further consultation with discussion about stress on 28 May 2020; then, after this application was filed on 11 June 2020, there is a referral to see a psychologist on 25 June 2020 and the psychologist sees Mr Warden for the first time on 2 July 2020.

[22] I find that Mr Warden’s actions in the period immediately following the expiry of the 21 day timeframe (particularly 28 to 31 January 2020) reflect that: he had sought and obtained information in order to understand his options. By 28 January 2020, Mr Warden had performed his own research including via the resources on the Commission’s website and, in doing so, could have identified and obtained support in understanding his options and lodging this application in a manner that accommodated his hearing impairment as the Commission has done during the course of these proceedings. These communications also reflect that, at least in this period, Mr Warden was capable of and not afraid to articulate the basis of this claim and intention to pursue it – which he did, in writing, to the Respondent (on both 29 and 30 January 2020) and to a Government authority (the Victoria Police, on 21 February 2020). On the evidence before the Commission, Mr Warden has not established that he was incapable of causing this application to be filed in late January or indeed early February 2020.

[23] Even if that were not the case, Mr Warden has not sufficiently explained the delay thereafter. He experienced some unfortunate events in late February 2020 which may have had some immediate impact which may have been intensified by his diagnosed conditions, but are not unique or unusual. There is no cogent evidence before the Commission as to why the global pandemic reasonably explains the delay in the circumstances of this case. By the time pandemic related restrictions were in place, the application was already well outside the 21 day timeframe and there is no explanation for why Mr Warden did not avail of video or telephone options in terms of seeking medical and/or legal support from mid March 2020 (as he did, for example, in communicating with the Commission by telephone and in attending the hearing of this matter by Microsoft Teams with the assistance of an interpreter). By 28 May 2020, Mr Warden had obtained medical support from his general practitioner and support from his parents. Then, and in the knowledge that he was already outside of the 21 day timeframe, Mr Warden still waited until 11 June 2020 to file this claim.

[24] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the lengthy delay in filing this application. I empathise with Mr Warden’s circumstances, but do not accept that the Applicant was prevented from or incapable of lodging the application at a time earlier than this application was lodged.

[25] The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[26] Mr Warden contends that he was forced to resign on and effective 6 January 2020. It follows that he was aware of the ending of his employment on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This would usually weigh against an applicant however in the circumstances of this case, I consider this to be a neutral consideration.

Action taken to dispute the dismissal

[27] The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future. 16 The Commission may also have regard to whether such action constitutes a genuine effort to resolve the dispute.17

[28] Mr Warden’s emails to the Respondent of 29 and 30 January 2020 plainly threatened to bring, and at least placed the Respondent on notice of Mr Warden’s intention to bring, a claim for “constructive dismissal” but do not evince any effort to resolve the dispute. This claim was not then contested until some months later.

[29] I am not satisfied that this action weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[30] The Respondent, a small business, claimed that if it were required to spend time and effort on this “baseless” claim it would be unfairly prejudiced and compromised in its ability to focus on the provision of essential mediations and health services during the COVID-19 pandemic. In addition, it claimed it has already sustained financial losses on account of Mr Warden’s unpaid debt.

[31] In this case the delay is lengthy, but there is no suggestion that relevant witnesses are no longer available or their recollections might be challenged by the delay. I accept that the Respondent would incur some time and cost in defending the claim as is always the case for a claim of this nature. However the Respondent has provided no evidence to support its contentions and I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this a neutral consideration.

Merits of the application

[32] The Act requires me to take into account the merits of the application in considering whether to extend time.

[33] There is a question about whether Mr Warden was dismissed from his employment at the initiative of the Respondent. The competing contentions of the parties in relation to this further jurisdictional question and the merits of the application are set out in the materials that have been filed and I do not repeat them here. Having examined those materials, it appears to me that the Respondent has a reasonable jurisdictional objection in that Mr Warden resigned his employment, for the second time in a matter of weeks, on 6 January 2020. Mr Warden does not dispute this but claims that he was “forced” due to the conduct of the Respondent, in support of which he has presented at least a prima facie case.

[34] The merits of the application ultimately turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be at best a neutral consideration.

Fairness as between the person and other persons in a similar position

[35] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[36] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mr Warden, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. The absence of an acceptable or reasonable explanation weighs strongly against, the action taken does not weigh in favour, and all other factors weigh at best neutrally towards a finding of exceptional circumstances in this case. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.

[37] I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR722457>

Appearances:

J. Warden for himself.
S. Newman-Diver of the Pharmacy Guild of Australia for the Respondent

Hearing details:

2020
Melbourne (by Video)
21 August.

 1   Applicant’s Witness Statement dated 17 June 2020 (First Witness Statement); Applicant’s Witness Statement dated 26 June 2020 (Second Witness Statement); bundle of documents filed 20 August 2020; see also Transcript of Hearing at PN60-61.

 2   Respondent’s F3 Response dated 21 July 2020; see also Transcript of Hearing at PN70-73.

 3   Respondent’s F3 Response dated 21 July 2020.

 4   Mr Warden’s evidence was that his casual employment commenced immediately from 17 November 2019 which was not disputed by the Respondent, see Transcript of Hearing at PN90 and PN93.

 5   Transcript of Hearing at PN64.

 6 Being the next business day following a public holiday, see: s.36(2) of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009 and pursuant to s.40A of the Act and s.6(c) of the Public Holidays Act 1993 (Vic).

 7   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 8   Ibid.

 9   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 10   Letter from Registered Psychologist, Graham Brewer JP, dated 2 July 2020 and filed with the Commission on 8 July 2020.

 11   Transcript of Hearing at PN125; see also materials filed on 17 June 2020.

 12   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 13   Shaw v Australia & New Zealand Banking Group [2014] FWC 3903 at [22].

 14   Underwood v Terra Firma Pty Ltd t/as Terra Firma Business Consulting [2015] FWC 1387 at [12].

 15   Email from Mr Warden to Mark Jadczuk dated 30 January 2020 and filed with the Commission on 17 June 2020.

 16   Wilson v Woolworths [2010] FWA 2480 at [19]-[21].

 17   Butterly v Boldstate Corporation T/A Kalamunda Patisserie[2014] FWCFB 7474.